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Thursday, November 15, 2012

Ordinarily, a defendant has 45 days from arraignment to file his omnibus motion. In People v. Bellissimo
(2d App. Term. 12/3/2009), Justice Court ruled the defendant's untimely
because it was not filed within this time frame. Appellate Term
nevertheless reversed the conviction. Why? Because Justice Court had
set a briefing schedule outside the 45 day window. As the People
conceded, the defendant's motion was filed in compliance with this
schedule and was therefore "within such additional time as the court may
fix upon application of the defendant made prior to entry of
judgment." CPL § 255.20(1). (LC)

Sunday, November 11, 2012

The New York Court of Appeals, in two cases involving the use of drug
sniffing dogs during automobile stops, held that a “founded suspicion,”
instead of the higher, more demanding "reasonable suspicion" standard,
justifies an exterior canine sniff search of an automobile.
Additionally, a canine sniff search of the exterior of an automobile
does constitute a "search."
In People v. Devone
(Ct. App. 6/08/2010) (Pigott, J.) (4-3), the police stopped a vehicle
for cell phone use. The officers discovered that a male driver was
operating a car registered to a female. After being ordered to exit the
vehicle, police officers conducted a canine sniff search due to the
“suspicious inconsistencies” in the driver's answers to various
questions. After being signaled by the dog of the possibility of drugs,
the officer found a quantity of crack cocaine in the seating console.
The Appellate Division reversed the trial court's order suppressing the
evidence and held that the police needed only a "founded suspicion" as
opposed to a reasonable suspicion to conduct the canine sniff on the
exterior of the vehicle.
In People v. Abdur-Rashid, a
companion case, an individual was pulled over twice in one day for
driving without a front license plate and having an expired inspection
sticker. The second officer observed the defendant become anxious and
ask to be let go since he was already stopped that day. When the officer
questioned the passenger in the car, who claimed that he was only there
trying to keep the driver awake and alert during their trip, the
officer became suspicious and retrieved his drug sniffing dog. After
being “alerted” by the dog, the officer found a black duffel bag in the
trunk filled with two freezer bags of cocaine.
The Court of
Appeals held that “founded suspicion" was present in both of these
cases. The majority justified this lower standard, maintaining that an
individual has a lower expectation of privacy in an automobile than in
his or her home. Given this lowered expectation combined with the fact
that the canine sniff is less intrusive, the founded suspicion standard
was appropriate.
Judge Ciparick dissented, arguing that a
reasonable suspicion standard should be met before a canine sniff is
conducted. There is an expectation of privacy in portions of a vehicle
not visible with the naked eye. Thus, probable cause is generally
required for those areas. Thus, the dissent argued there should not be a
difference between a dog sniff outside of a home (which is not allowed
under People v. Dunn) and a sniff outside of a car. The dissent added
that because drug sniffing dogs are trained for just that—drug
sniffing—that those dogs would not have helped the officers ascertain
whether the vehicle was stolen. Thus, the drug sniffing dogs served no
purpose related to the stop itself; rather, the canines were used to
engage in a fishing expedition for unrelated evidence.
Additionally,
the dissent emphasized that the policy justification behind
distinguishing between vehicular and residential privacy—practical
concerns surrounding expediency—were not present here. Finally, the
dissent pointed to New York's strong tradition of protecting its
citizens from unreasonable searches as a justification for a higher
standard.

Friday, November 2, 2012

In NY criminal law (wikipedia.org), adjournment in contemplation of dismissal (ACD or ACOD) may be offered to a defendant (wikipedia.org) in the interest of justice with a view toward ultimate dismissal of the charge (wikipedia.org)[1] (wikipedia.org) The judge (wikipedia.org) usually adjourns (wikipedia.org)
the case for a period of six months (sometimes a year) after which
time the case will be dismissed as long as the defendant has stayed out
of trouble (i.e., has not gotten arrested (wikipedia.org) again). It is neither a form of probation (wikipedia.org), nor a conviction (wikipedia.org).See e.g. New York Criminal Procedure Law, Section 170.55For
many clients facing a criminal charge in the NYC Criminal Courts, the
best option is the Adjournment in contemplation of Dismissal under
170.55. ("ACD"). The Statute is set forth below in its entirety:
Clients are always interested in understanding this option and for sake
of clarity, I have reproduced the entire statute below: "§
170.55 Adjournment in contemplation of dismissal. 1. Upon or after
arraignment in a local criminal court upon an information, a simplified
information, a prosecutor's information or a misdemeanor complaint,
and before entry of a plea of guilty thereto or commencement of a
trial thereof, the court may, upon motion of the people or the
defendant and with the consent of the other party, or upon the court's
own motion with the consent of both the people and the defendant, order
that the action be "adjourned in contemplation of dismissal," as
prescribed in subdivision two. 2. An adjournment in contemplation of
dismissal is an adjournment of the action without date ordered with a
view to ultimate dismissal of the accusatory instrument in furtherance
of justice. Upon issuing such an order, the court must release the
defendant on his own recognizance. Upon application of the people,
made at any time not more than six months, or in the case of a family
offense as defined in subdivision one of section 530.11 of this
chapter, one year, after the issuance of such order, the court may
restore the case to the calendar upon a determination that dismissal of
the accusatory instrument would not be in furtherance of justice, and
the action must thereupon proceed.If the case is not so
restored within such six months or one year period, the accusatory
instrument is, at the expiration of such period, deemed to have been
dismissed by the court in furtherance of justice. 3. In conjunction
with an adjournment in contemplation of dismissal the court may issue
a temporary order of protection pursuant to section 530.12 or 530.13
of this chapter, requiring the defendant to observe certain specified
conditions of conduct. 4. Where the local criminal court information,
simplified information, prosecutor's information, or misdemeanor
complaint charges a crime or violation between spouses or between
parent and child, or between members of the same family or household,
as the term "members of the same family or household" is defined in
subdivision one of section 530.11 of this chapter, the court may as a
condition of an adjournment in contemplation of dismissal order,
require that the defendant participate in an educational program
addressing the issues of spousal abuse and family violence. 5. The
court may grant an adjournment in contemplation of dismissal on
condition that the defendant participate in dispute resolution and
comply with any award or settlement resulting therefrom. 6. The court
may as a condition of an adjournment in contemplation of dismissal
order, require the defendant to perform services for a public or
not-for-profit corporation, association, institution or agency. Such
condition may only be imposed where the defendant has consented to the
amount and conditions of such service. The court may not impose such
conditions in excess of the length of the adjournment. 7. The court
may, as a condition of an adjournment in contemplation of dismissal
order, where a defendant is under twenty-one years of age and is
charged with (a) a misdemeanor or misdemeanors other than section
eleven hundred ninety-two of the vehicle and traffic law, in which the
record indicates the consumption of alcohol by the defendant may have
been a contributing factor, or (b) a violation of paragraph (a) of
subdivision one of section sixty-five-b of the alcoholic beverage
control law, require the defendant to attend an alcohol awareness
program established pursuant to subdivision (a) of section 19.07 of the
mental hygiene law. 8. The granting of an adjournment in contemplation
of dismissal shall not be deemed to be a conviction or an admission of
guilt. No person shall suffer any disability or forfeiture as a result
of such an order. Upon the dismissal of the accusatory
instrument pursuant to this section, the arrest and prosecution shall
be deemed a nullity and the defendant shall be restored, in
contemplation of law, to the status he occupied before his arrest and
prosecution. "

Agency Defense & MotiveI highly recommend an article (ssrn.com) by one of my colleagues, Professor Elaine Chiu (stjohns.edu),
about the role of motive in criminal law. Prof. Chiu uses New York's
agency defense -- which holds that a steerer who acts as an agent of
the buyer, not the seller, in a drug sale is guilty as an accomplice
to possession, not sale -- to argue for greater consideration of motive
in deciding guilt and punishment.Here is the abstract:

This
article builds on recent discussions amongst criminal law scholars on
the role that motive should play in the criminal law. It advocates for
greater consideration of a defendant's motive in all
critical decisions of the criminal justice process and offers concrete
guidelines. Unlike many other articles that focus on euthanasia or hate
crime, this one takes on the simple street sale of drugs and an
unusual defense known as the agency defense to demonstrate how the
criminal law can better accommodate motive. Created to avoid the harsh
jail terms imposed on convicted drug dealers, the agency defense
pretends that steerers who steer customers to drug dealers are the
purchasing agents of the customers. As agents, they avoid
criminal liability for the sale of drugs. Steerers, though, are not
agents; instead, they are commonly drug addicts themselves who support
their addictions by working as steerers. Instead of using a legal
fiction like agency, this article proposes that the criminal law
honestly and directly accommodate the true motive of steerers to
satisfy their drug addictions. Addiction is admittedly problematic as a
motive because of its low provability and low moral potency.
One acceptable accommodation may be to mandate that judges simply
consider whether drug offenders suffer from addictions in determining
the appropriate sentence. Aside from this consideration, not every
defendant will warrant an actual reduction in sentence. That would be
up to the discretion of the judge.